LQM PTY LTD (Migration) - [2023] AATA 4726

LQM PTY LTD (Migration) [2023] AATA 4726 (5 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  LQM PTY LTD
REPRESENTATIVE:  Ms To Quyen (Tina) Tran (MARN: 1466142)
CASE NUMBER:  2003546
HOME AFFAIRS REFERENCE(S):          BCC2019/2238420
MEMBER:Terrence Baxter
DATE:5 December 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 05 December 2023 at 9:20am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Contract Administrator – occupation requirements – tasks performed by the nominee – alignment with the ANZSCO – employment in the position for at least 2 years – PAYG payment summaries – date of issue – name discrepancy – quality of the representative’s submissions – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 February 2020 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, LQM Pty Ltd, applied for approval on 24 April 2019. The applicant nominated Ms Thanh Dinh (the nominee) in the position of Contract Administrator. The applicant operates a wholesale and retail business in the Perth, Western Australia region with its main outlet at Malaga and a second store at Armadale. The applicant has employed the nominee since approximately 2009 and in the position of Contract Administrator since 2015.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval, then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream. A nomination that relates to a visa in the Temporary Residence Transition stream must meet the requirements of reg 5.19(5): reg 5.19(4)(e).
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(5)(f) of the Regulations because the delegate found that the applicant had not established that the nominee had been employed in the nominated position on a full-time basis for a total period of at least two years during the period of three years immediately before the nomination application was made.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 24 February 2020.
Ms Diana Lam, the Accounts Manager and Office Manager of the applicant, appeared before the Tribunal by video conference on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: LQM PTY LTD (Migration) [2023] AATA 4726
Case: [2023] AATA 4726
Decision Date: 5 December 2023

CaseChat Overview and Summary

This matter concerned an appeal by LQM Pty Ltd against a decision of the Administrative Appeals Tribunal (the Tribunal) regarding the approval of a nominated position under the Temporary Residence Transition stream. The core of the dispute revolved around whether the nominated position of Contract Administrator met the relevant occupation requirements, specifically concerning the tasks performed by the nominee and whether the nominee had been employed in the position for at least two years. A further issue arose regarding the date of issue of PAYG payment summaries and a discrepancy in the name appearing on these documents.

The legal issues before the court were whether the Tribunal had erred in its assessment of the nominated position's alignment with the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and whether the evidence presented sufficiently demonstrated the nominee's employment in the role for the requisite period. The court was also required to consider the implications of the PAYG payment summary discrepancies and the quality of the applicant's submissions in light of the evidence.

The court's reasoning focused on the evidence presented by Ms Lam and the nominee regarding the tasks performed, assessing their alignment with the ANZSCO requirements for a Contract Administrator. The court considered the evidence of employment duration, including the PAYG payment summaries, and noted a discrepancy in the name on these documents. The court also evaluated the submissions made by the applicant's representative.

Ultimately, the court found that the Tribunal had erred in its decision. The court set aside the Tribunal's decision and remitted the matter back to the Tribunal for redetermination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Lam gave evidence of the tasks performed by the nominee as Contract Administrator. The nominee also provided evidence of the tasks performed by her in the position.Evidence provided after the hearing After the hearing, the applicant provided to the Tribunal the following documents:a.An updated employment agreement dated 14 September 2023.b.Current market salary evidence.c.The applicant’s financial statements for the 2021 and 2022 financial years.d.The applicant’s tax returns for the 2021 and 2022 financial years.e.Business activity statements for the period from July 2020 to June 2022.f.Recent payslips of the nominee.g.Various contracts relating to the applicant’s business.h.A submission from the applicant dated 28 September 2023.i.The applicant’s determination of the annual market salary rate for the occupation accompanied by relevant evidence.Application requirements – reg 5.19(4)(a) Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:·be made in accordance with approved form 1395 (Internet);·identify the position;·identify a person in relation to the position;·identify an occupation in relation to the position;·identify the subclass and stream to which the nomination relates;·be accompanied by the fee mentioned in reg 5.37; and·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act). Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.No adverse information known to Immigration – reg 5.19(4)(b) Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:·has contravened a law of the Commonwealth, a State or a Territory; or·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law; or·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law; or·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)); or·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)). The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances; or·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member); or·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them; or·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)); or·one is or was able to exercise influence or control over the other; or·a third person is or was able to exercise influence or control over the both of them.Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist. At the hearing, the Tribunal advised Ms Lam that the records of the Department included a Client of Interest note recording that an allegation had been received by the Department in March 2020 regarding staff exploitation. Ms Lam stated that she had not previously received notice of the allegation and that the applicant had not been contacted by the Department to investigate the allegation.